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tv   [untitled]    November 12, 2012 3:00am-3:30am PST

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in fact a disqualifying conviction, and that's really the reason why -- there are two reasons, but the major reason why this permit was denied, and then i reaffirmed that denial. i do not disagree with what was presented to me by the police department at that time as mr. johnson may have alluded to. what i did do was encourage him to reapply once the four year period -- a disqualifying crime means four years from the time of the conviction until the application needs to pass, so i did encourage him to apply after that four year period which would be september of 2013. second point they would like to make it seems pretty clear to me and it did at the time of the hearing that the law is specifically crafted to
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disallow individuals with convictions such as this from operating a tow truck for four years. he fits the definition of the individual that you should not allow to drive for four years pretty well, and the conduct we find egregious. the conduct occurred with a tow truck so it makes is more relevant -- >> hold on. >> [inaudible] >> it was more relevant, so that being said -- >> please. let the -- >> with that being said i think the decision was reasonable, and prudent. the problem was of course, and i think that's what the confusion was for this board, at the previous hearing. the problem was the police procedure, and i won't go through what has been written already. i think it was fairly described there, and so i'm sure that mr. johnson got a copy of
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that as well, so he can respond to the mistakes that were made during the hearing. the final point they would like to make is that -- this is a hearing devoafa, so why are all these hearings at different administrative levels, hearings de novo. it's so you can correct due process violations that occurred at lower level and i think that's what you have here. not with regard to the denial. that's the matter i heard. the denial of the permit application to operate a tow truck for nelson's tow. i think there were due process violations with regard to revoking the permit and the due process violation was specifically a matter of notice, and that takes -- i mean due process is notice and opportunity to be heard in a
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fair hearing. i think if i was representing the other side here i would say yeah those things weren't allowed clearly enough with regard to revoking the permit that mr. johnson holds for bay bridge towing. with that being said the reasons for denial is reasonable as i stated. those same reasons, convictions would be used to revoke, and the code is pretty clear under 3011 of the municipal police code that if in fact there is a conviction that's discovered by the permitting authority that that conviction, which in this case is the malicious mischief to a vehicle, can be used to to revoke, so practically speaking i think what will happen here is if you decide to allow
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mr. johnson -- because of these mistakes that were made, these due process mistakes -- if you allow him -- overrule the police department and allow him to keep the permit for bay bridge towing i assume the police department will probably bring some administrative action to revoke that permit based on the discovery of this conviction, so you will probably be here again, so that's the practical matter, and that's why i am putting forward this idea that since this is a de novo hearing that you consider that conviction new. you consider it here, and apply it in this case in regard to the revocation as well. thank you. if you have any questions i'm -- >> yes officer. how does the
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department define the four year period? the appellant indicated the incident occurred in 2007. >> the incident occurred in 2007. the conviction was in 2009, september 4, 2009. the code is very specific it's four years from the date of conviction to the date of application, and so that's the case here. i think -- and that's why i encouraged him to reapply september of 2013. the only other thing i think there was a record shown that was represented as mr. johnson's criminal history, and that was the dmv record, court records. i cannot share with you the criminal history information. it's not the document and the information. it's not allowed under law, but i can tell you
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the court records show there was in fact a conviction at that time, and so that what that is. >> officer, you're also away i believe that mr. johnson is prepared to not appeal the bay tow denial and want to keep the nelson. >> nelson -- >> the other way around. >> did i get that incorrect? >> yeah. bay bridge. what's it called? bay bridge. >> and we would get confused and even when the application was first filed -- if you have a copy of the application it was difficult to get through, and our clerk carol anderson was trying to help mr. johnson -- she helped him type in the section for the application he already held a permit for bay bridge tow at that time so he didn't fleed to apply for that
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again. >> i guess my last question then it's hard to read that dmv record. >> the dmv record isn't relevant here other than the fact that you need a drivers license to operate a towing truck. what is relevant is the criminal convictions and second early the fact that information wasn't placed on the application itself, but the real reason for denying this was that that section, the criminal conviction. >> when was the -- what was the date of the renewal application? >>i think it's december of 2011. >> [inaudible] >> december 2011 and there were a number of failures to appear.
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>> okay. thank you. thank you. >> thank you. >> okay. thank you. >> is there any public comment on this item? seeing none commissioners unless you have further questions the matter is submitted. >> you want to let him say anything else? >> do you have something further you would like to address? go ahead. >> i would like to comment on -- i would like to comment on a couple things this gentleman said. number one, it didn't happen in a tow truck. >> mr. johnson speak to us please. >> number one -- he said it happened in a tow truck. my incident didn't happen in a tow truck and i paid for my
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incident and everything that was said here is because he has a badge and tell a lie about somebody. i work with many officers out here for the last 20 years. i have been working with every dwt officer here in san francisco and if you drive a bike and you know what i am and i did my job for 20 years in san francisco. you're just a guy that is behind -- >> please. no disparaging comments please. thank you. >> well, i guess my question really is about the criminal conviction itself. i understand you could not share the actual
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rap sheet, but i have nothing in front of me to indicate that there was a conviction that falls within subdivision a. >> i guess we were expecting this might be a problem some day. >>i think it is. >> because there are so many permitting decisions, whether it's with regard to someone who wants to be a masseuse, tow truck driver, a lot of the other things. a lot of the decision is based on criminal history. i don't believe that -- i am authorized to share information directly from the criminal history information that only the police department and other authorized agencies and people can receive. i don't believe i'm able to share that with you. i can tell you as an officer of the court, as the hearing
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officer and as a retired police officer that the official documents that exist, whether they be court documents, which are public record, and that can be shared and used here indicate clearly that there was a conviction. i think mr. johnson has admitted there was a 2007 arrest. there was a 2009 conviction and the conviction was for reckless driving and for malicious mischief to a vehicle, and he served short of a year -- there was pushment was a year and a half in custody. i don't know if that was serve -- i don't know how that was served. whether it was served at home, whether it was served -- >> he can tell us how he served.
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>> actually my difficulty with it is not what he served or i mean i have a police report here. i think the issue is that the code requires a proof of a conviction which we don't have any certified copy of any court document. we don't have a rap sheet. i understand not sharing a rap sheet but a certified conviction from the court would have sufficed and i believe you could have presented that so that's the issue for me. i don't know that there was a conviction under this code section, and everything else is hearing in my opinion. >> sure. >> so that's the issue. >> if you want more proof, if you want a document that can be provided. it will be provided via court records most likely, and i don't know about the local criminal history, whether that would show it. i'm not sure, but the police department i'm
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sure will be able to provide more proof that there is in fact a conviction, and that the conviction occurred in 2009. >> are you allowed to share a number of incidences? >>i think i'm going to -- there's -- it's funny i did this for 18 year scpis wondering when this issue would come up. like where the board would request specific information from criminal history record, and i don't feel comfortable disclosing any of it. it's a misdemeanor if someone authorized to see it shares it with someone not authorized. you maybe authorized in a certain way but certainly not in a public hearing. we may have to go in camera. i don't know. i am comfortable with telling you if you want to put it over
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a week or two weeks we will provide you with more proof that the conviction actually exists, but i'm telling you here it exists. >> well, my opinion is -- i don't know how everyone feels. but my opinion is if we're talking about revoking a permit, a, that is someone's livelihood. >> >> that we can make sure there was a conviction that actually disqualifies this person. not that i'm taking your word as true as an officer of the court, but i believe that is what we're required to do in this situation. >> all right. that is in regard to the revocation of the bay bridge -- or does that apply to both issues? i guess it would. >> i think the other permit denial is not at issue. i think we heard -- >> well, based on the criminal conviction. >> well, we heard already that
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the appellant is not contesting that. the issue is the revocation of the existing permit to operate his -- >> bay bridge. >> yeah. >> okay. >> so i guess i have a different issue which is somewhat by their own admission the department didn't follow their own due process and procedures, and so what i would be inclined to do if appropriate is remand it back to go through that revocation in a proper manner. again the appellant has somewhat by his own admission said that he submitted an offense that would disqualify him, but regardless of that he wasn't appropriately treated by the department, so that's the kind -- my issue. >> i couldn't agree more. please sit down. we're in deliberation, so i would agree
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with that, in fact that's the principle concern i have more than the evidentiary concern, but the evidentiary concern is a good point. i think, you know, a process is in place for an important purpose and to give people notice of what they're -- what is being taken away from them and this wasn't done here and i understand the point of the department that if we decide that this revocation should be stricken you would just go back and do it again, and that's obviously up to you and your own resources to do that, but i would be inclined to up hold the arkts peel on the basis that notice and the process was done in error by the admission of the department. >> commissioners, just to point out that what the board staff thought was appeald and what has been noticed as a board item on
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your calendar is the permit on questions sad a it's the renewal application and not the other application. just another term to consider with the due process issues you're considering. >> okay. >> so it may that you don't have that before you and the question before you how you want to address the denial of the new application. >> the nelsons? >> yes. >> commissioners i would take a slightly different approach. the fact is that when he made the application he presented his history. given approval of that application and therefore i wouldup hold his operator's license. >> all right. i think i would agree with that based on no proof of any disqualification
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before me right now. >> but we can't -- we've only got nelson's in front of us and not bay bridge. >>i think that's what vice president fung is addressing, the application for the second permit. that's what is before you and i believe that is what he is talking about. >> that's what is before us, but the practical issue is that the appellant believes he's got the bay bridge towing revocation. that that's what he understands. >> that's not the documentation he brought to us initially. >> okay. >>y woorp pretty confused the first time as i recall. we were not sure what was being appeald and we're still not clear. >> so the bay bridge is not really a revoked permit?
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>> the only thing they believe the board has in its records to indicate that would be the letter that we received from the officer explaining the process. >> okay. okay. >> yeah. >> okay. >> i'm going to move to overrule the department and approve the operator's license on the basis that the application was made, license was issued, and that he presented all the known facts of his own history at that particular application. >> okay. >> and i would hope that they find a way to be able to deal with that and the decisions we may potentially make. >> so your motion is grant the appeal. overrule the department and issue the permit on the basis that when the appellant applied for this permit he
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fully disclosed his conviction history. >> sure. >> yes. >> okay. >> all right. that's the nelson's. >> it's nelson's. that's what is before us. commissioners, if he disclosed his history, and that was a legitimate basis for the department to deny it because of the conviction, i'm not understanding -- >> the department has indicated two things in their denial process. one is that he hid his conviction record as part of the reason why he was denied.
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>> and it's legitimately applicable to the application. then it seems they properly denied his permit. i'm missing something here. >> well, in my opinion there is no proof of conviction so there is no basis before and we're reviewing de novo there was no basis. in other words, we have no proof before us there was a conviction as defined by the statute. we have nothing and the department admitted that they haven't presented proof of this conviction. we don't know if this man was convicted of anything or if it's within the statute. >> i understand that. so would
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it be appropriate to continue it . ask the department to stub stageiate their position. >> we asked the department and it wasn't given. i don't think we need to continue this further. i wouldn't be inclined to continue this. >> okay. >> i wonder vice president if you're inclined to provide as a basis for the decision that there was no evidence provided by the police department of any conviction. >> that's fine. >> okay. >> we allowed him to talk. do you want to allow the officer -- he raised his hand. >> oh sure. >> i would just like to make a statement for the record. one
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is that we have presented evidence that the conviction exists by our own testimony, and i believe that if you ask mr. johnson whether the conviction exists he will say "yes it does" but i don't want to put words in his mouth. i am sure he will admit to that much. that wasn't in question here. >> thank you. >> thank you. >> i just have one more point to make. i'm not clear on exactly what the ruling is going to be here, and remember there are two permits and i was under the impression -- you told me earlier with regard to nelson's it was withdrawn. >> no. it wasn't withdrawn. >> the only appeal is the nelson's operator's license. >> okay. >> technically that is what before us. my comments went to the bay bridge and that is not
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before us as was clarified by our director. what is before us is nelsons. >> okay. >> so we're making a ruling on that. >> may i ask for a continuance of one week to show the records that there is proof of a conviction if that is the basis for a denial or overruling the police department. it's easily remedied and justice will exist. i mean this is -- i don't think this say just result. i think you could give us one more week for that. >> thank you. >> thank you. >> >> we're done. i believe there is a motion on the table. >> and we have a motion from the vice president to overrule the denial and issue this tow car operator permit for nelson's tow with a finding that the appellant fully disclosed
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his criminal history at the time of application and further finding that though evidence was presented by the police department regarding the appellant's criminal history. >> that's it. >> okay. on that motion from the vice president to overrule and issue the permit with findings. president hwang. >> aye. >> commissioner hurtado. >> aye. >> commissioner lazarus. >> no. >> the vote is three to one. this denial is overruled and the permit shall issue. thank you. >> i need to take a >> the november 7, 2012 meeting of the board of appeals. commissioner hurt had to leave the meeting. we are
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calling the next case and kevin cheng and todd mavis and 1101-1103, 1105 and 1111 and dolores street and addressed to lawrence badiner at urban planner and considered confirming lot and no variances are needed. this is on for hearing today. we will start with the appellant who has seven minutes to present your case. >> good evening commissioners. todd mavis. i am one of the owners at one one 01 and one one 03 dolores street. on the over head project ser a picture of dolores street and 24th street. we own the building at the
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corner. as way of background we purchased in 2011. in may 2012 we asked the planning department to confirm the process for the properties on dolores street. that being one one 05 and one one one one. the zoning administrator in the august 17th 2012 letter agreed that 1955 the planning department approved a subdivision of lots 33 and 32 which encompasses these three buildings and set aside the strip of land for lot 33. this being lot 33 and this being -- where my finger is, the 10-foot strip of land and granted a permit to the two buildings here
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on what is now called lots 38 and 37. each of those three and a half feet wide. the zoning administrator on september 11, 2012 without explanation or request by us as owners issued a revised letter, and issued a variance in that letter stating that lot 33 effectively didn't need the 10 feet by 50-foot piece of strip of land to be a legal lot, and gave our lot a variance saying that it would be therefore a legal lot without meeting the guidelines without that strip of land, and essentially trying to correct the 1955 approval process where the city never enforced that approval that the 10-foot by foot foot strip of land would be given to lot 33 and correct that lack of enforcement by issuing
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this letter. why we're here today just to be very clear and repeat what is in the briefing document before you is we would like the september 11, 2012 letter revoked and we would like restrictions placed on that strip of land so neither us as owners of the corner lot or the adjoining neighbor are able to build or obstruct that piece of land regardless of who has proper owner should -- ownership and the law be we held and the way the lot is today someone could apply for a permit and build on it. the reason we're asking